CMS launches e-guide on the Battle of Forms

05/07/2016

Negotiating contracts is complicated enough without any additional obstacles. However, certain situations are almost inevitable, especially when doing business internationally. CMS has put together a guide on the battle of the forms that covers 23 jurisdictions to help our clients make important decisions when negotiating B2B contracts.

In commercial contracts, each party usually references its “own” standard terms and conditions (Ts&Cs). Usually, the Ts&Cs on each side contradict each other in important areas such as warranty rights or limitation of liability. The question of which party's Ts&Cs apply, or whether either apply at all, is commonly described as the “battle of the forms”. There are mainly two ways in which the respective jurisdictions deal with this: (i) the “Last-Shot Rule”, meaning that the Ts&Cs of the party which refers to them last apply (e.g. the supplier by confirming the customer's order), or (ii) the “Knock-Out Rule”, meaning that neither parties' Ts&Cs apply but instead the contract is subject to the applicable statutory law. However, some countries have chosen a thoroughly different approach as is outlined in our overview.

Each country chapter in this guide illustrates the local legislative preference in the use of Ts&Cs. We hope it will ease the process of drafting and negotiating contracts for our clients.

If you have any questions, please contact the authors of individual chapters or our group heads Dirk Loycke and Renaud Dupont.

Authors

Picture of Gregor Famira
Gregor Famira
Partner
Vienna
Daniela-Karollus-Bruner-CMS-AT
Daniela Karollus-Bruner
Partner
Vienna
Picture of Döne Yalçın
Döne Yalçın
Partner
Vienna
Picture of Johannes Trenkwalder
Johannes Trenkwalder
Partner
Vienna
Dirk Loycke
Dirk Loycke
Partner
Stuttgart
Picture of Renaud Dupont
Renaud Dupont
Managing Partner
Brussels
Picture of Assen Georgiev
Assen Georgiev
Partner
Sofia
Picture of Ulrike Glueck
Dr. Ulrike Glueck
Managing Partner
Shanghai
Picture of Tomas Matejovsky
Tomáš Matĕjovský
Partner
Prague
Picture of Susan Barty
Susan Barty
Partner
London
Picture of Stephanie de Giovanni
Stéphanie de Giovanni
Counsel
Paris
Picture of Marton Domokos
Márton Domokos
Co-ordinator of the CEE Data Protection Practice, CMNO
Budapest
Picture of Vincenzo Giangiacomo
Vincenzo Giangiacomo
Partner
Rome
Picture of Aukje Haan
Aukje Haan
Partner
Utrecht
Picture of Malgorzata Urbanska
Małgorzata Urbańska
Partner
Warsaw
Picture of Francisco Xavier de Almeida
Francisco Xavier de Almeida
Partner
Lisbon
Picture of Gabriel Sidere
Gabriel Sidere
Managing Partner
Bucharest
Sergey-Yuryev
Sergey Yuryev
Partner
Moscow
Picture of Carina Healy
Carina Healy
Partner
Glasgow
Picture of Peter Simo
Peter Šimo
Partner
Bratislava
Picture of Carlos Pena
Carlos Peña
Partner
Madrid
Picture of Philipp Dickenmann
Philipp J. Dickenmann, LL.M.
Partner
Zurich
Tom Heremans
Partner
Brussels
Picture of Nedeljko Velisavljevic
Nedeljko Velisavljević
Partner
Belgrade
Picture of Nenad Kovacevic
Nenad Kovačević
Attorney-at-Law
Belgrade
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